Summary
noting similar difference in signatories
Summary of this case from McAllister v. Countrywide Home Loans, Inc.Opinion
No. 12–P–942.
2013-08-13
Tali BARASH v. CITIMORTGAGE, INC., & another.
By the Court (GREEN, HANLON & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Tali Barash, appeals from the dismissal of her complaint seeking declaratory and injunctive relief, as well as damages, arising out of the defendant CitiMortgage, Inc.'s, attempt to foreclose on her home. We affirm.
Background. On November 27, 2002, Barash and her former husband executed a mortgage secured by an “Adjustable Rate Note,” promising to repay to RBC Mortgage Corporation a loan of $390,000 secured by the marital home at 40 Orchard Road, in Ashland. While Barash signed the mortgage documents, which indicated she was a party to the note, she did not sign the note. The note was initialed and signed only by her husband. On January 29, 2010, as part of the parties' divorce proceedings, the husband was ordered to make the mortgage payments on the property. He stopped making the payments in May, 2010; Barash also made no further payments. On October 29, 2010, the mortgage was assigned to CitiMortgage. On December 31, 2010, CitiMortgage sent a letter to Barash and her husband notifying them that the mortgage was in default and that the past due amount, plus late charges and delinquency-related expenses, must be paid by May 30, 2011, to cure the default. The letter also stated that if payment was not made, the loan “may” be accelerated and CitiMortgage “may then take steps to terminate [their] ownership in the property by a foreclosure proceeding or other action.” Barash was given an option to redeem the property by paying the total amount due prior to the foreclosure sale.
According to Barash, from approximately May, 2010, through October, 2011, she attempted to contact CitiMortgage to engage in negotiations, seeking “commercially reasonable alternatives to foreclosure.” CitiMortgage's representatives repeatedly informed her that they could not discuss the loan with her because she did not sign the note. On June 22, 2011, attorneys for CitiMortgage sent a letter to Barash informing her that CitiMortgage “elects to accelerate the entire indebtedness and declares the entire balance due and payable forthwith and without further notice.” Barash received another letter, dated October 21, 2011, stating that CitiMortgage intended to foreclose, and that sale of the property was scheduled for November 15, 2011.
The letter specified, “To cure the default you must pay the past due amount of $21479.85, including $396.12 in late charges and $178.50 in delinquency related expenses.”
On November 8, 2011, Barash filed a complaint seeking a declaratory judgment and alleging that CitiMortgage had violated G.L. c. 244, § 35A, by failing to “negotiate in good faith with [Barash] and give [Barash] proper notices and comply with the appropriate time standards.”
CitiMortgage moved to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), asserting that G.L. c. 244, § 35A, did not require CitiMortgage to negotiate with Barash. The judge allowed the motion, ruling that CitiMortgage “had no statutory obligation to negotiate in good faith with [Barash] since it did not commence foreclosure proceedings until 150 days after notice of default of the required payment.”
The complaint also alleged breach of contract, negligence, wrongful foreclosure notice, request for accounting of mortgage payments and interest, and deceptive acts and practices under G.L. c. 93A.
Discussion.
Barash now argues that CitiMortgage breached the mortgage contract by neglecting to follow “the spirit, intent and purpose” of G.L. c. 244, § 35A, by refusing Barash the right to cure her default. In Barash's view, the judge too narrowly viewed the language of the statute by looking only to the procedural steps required of CitiMortgage and failing to interpret the applicable statute “as a whole,” thus overlooking the intent of the Legislature. Barash also contends that the judge did not address the fact that her signature did not appear on the note.
When reviewing a motion to dismiss under rule 12(b)(6), we “take as true the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff's favor.” Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 (2004) (citation omitted). The plaintiff is required to make factual allegation which plausibly suggest an entitlement to relief. Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Our review is de novo. See Dartmouth v. Greater New Bedford Regional Vocational Technical High Sch. Dist., 461 Mass. 366, 373 (2012).
Barash does not dispute that CitiMortgage did not initiate the foreclosure until after the 150–day cure period had expired, or that the default was not cured in that period.
She also agrees that she received written notice of her loan default and pending foreclosure. See G.L. c. 244, § 35A( b ). In the Superior Court, Barash primarily argued that “CitiMortgage violated G.L. c. 244, § 35A [because] it failed to make a good faith effort to negotiate a commercially reasonable alternative to foreclosure.” As the motion judge ruled, because CitiMortgage did not seek to shorten the 150–day period, the statute did not obligate it to engage in “a good faith effort to negotiate a commercially reasonable alternative to foreclosure.” Under the terms of the mortgage and note, CitiMortgage was entitled to accelerate the full payment of the loan amount upon continued default. When the loan amount was not paid by the scheduled sale date as required, CitiMortgage had the right to foreclose on the property.
CitiMortgage first notified Barash of the loan default on December 31, 2010, and did not begin foreclosure proceedings until June 22, 2011, more than 150 days after the initial notification.
On appeal Barash argues, essentially, that by failing to discuss the mortgage with her, CitiMortgage deprived her of an opportunity to cure the default. As CitiMortgage argues in response, this argument was not made below; it is therefore waived. While Barash's reply brief argues to the contrary, is contains no citation to the record to show when and how that argument was made to the motion judge.
In addition, the first notice of impending default did provide Barash with the amounts necessary to cure. See note 2, supra. Nothing in the record indicates that amount was ever tendered. On the contrary, correspondence from her attorney contained in the record indicates that Barash was not able to pay and was, instead, attempting “to pursue a possible mortgage modification.”
We agree with the motion judge's decision, thoughtfully explained in his memorandum, dismissing the complaint.
Judgment affirmed.